R.I. governor, state treasurer cite judge’s order in denying Journal request for state payment records for defense of pension overhaul

Friday

Nov 15, 2013 at 9:50 PM

PROVIDENCE — In an unprecedented development, state officials are citing Superior Court Judge Sarah Taft-Carter’s confidentiality order in the private, court-ordered pension talks as an insurmountable...

Katherine Gregg Journal Political Writer kathyprojo

PROVIDENCE — In an unprecedented development, state officials are citing Superior Court Judge Sarah Taft-Carter’s confidentiality order in the private, court-ordered pension talks as an insurmountable obstacle to the release of state payment records.

First Governor Chafee — and then state Treasurer Gina Raimondo — denied The Providence Journal’s request for access to the bills, totaling $458,238 so far, that lawyers and actuaries have sent the state for their work in fighting employee union challenges to the state’s efforts to cut soaring pension costs.

It is the first known case in which state officials have cited a judge’s confidentiality order as justification for withholding a basic government record, and in this case, state-paid bills.

In response to an inquiry about the judge’s intentions, court spokesman Craig Berke on Friday relayed this response: “Judge Taft-Carter was made aware by the parties to the litigation of The Journal’s request for records. Based on what the lawyers in the case have conveyed to the court, it is the judge’s opinion that the requested records fall within the limits of the confidentiality order of January 14, 2013.”

“The order is temporary,” he added, only remaining in effect “until such time as the mediation is suspended or terminated.”

Asked when that might be, Berke said: “There is no deadline. Mediation typically continues until such time as there is a settlement or the parties inform the mediator they are at an impasse.”

With the next private conference with the judge scheduled for Thursday at 9 a.m., Berke said: “The purpose of the periodic status conferences is to assure the judge that the talks are continuing; it is not to get into the substance of the talks. As long as the parties keep saying they are talking and want to continue to talk, the court will schedule another status conference.”

Taft-Carter is presiding over lawsuits filed by the state’s public employee unions seeking to overturn the 2011 restructuring of the state’s pension system by the General Assembly and an earlier attempt by lawmakers to rein in pension costs.

The confidentiality order that Taft-Carter issued in January, when she ordered the parties in the case to take part in mediation, makes no mention of state payment records.

The judge more broadly ordered the parties “to strictly maintain the confidentiality of the mediation process. … Any and all information disclosed in the course of the mediation, including … the dates, times and locations of meetings, shall not be disclosed to anyone who is not directly participating in the mediation process.”

A week ago, top aides to governor and treasurer voiced concern about releasing any information about the amounts paid the state’s lawyers and actuaries, in light of Taft-Carter’s order.

After some internal debate, they made public the total amount the state has paid so far: $458,238.

Unwilling to release any additional information at that time, the spokeswomen for the governor and treasurer issued this statement last week:

“Given the unprecedented nature of mediating the pension law passed in 2011 and the court’s confidentiality order, the Governor’s Office and Treasury on advice of counsel, are proceeding with extreme caution so as not to jeopardize the state’s position in representing the taxpayers.”

The statement acknowledged that one of Raimondo’s aides had asked the state controller to hold off releasing any additional information about the payments “until after Tuesday’s court date, again out of an abundance of caution given the unprecedented nature of this legal proceeding.”

On Tuesday, the lawyers in the pension case met privately with Taft-Carter for a 10th time on the status of the closed-door mediation efforts.

When asked later what, if anything, the judge said about the state’s ability to release the payment records, Chafee spokeswoman Christine Hunsinger initially said:

“The parties appeared in court, and what I can tell you, based on legal advice, is that … given the court’s confidentiality order, the governor and treasurer are refraining from releasing any further information about the mediation process.”

Asked how the Chafee administration was defining “mediation process,” she later said: “The mediation process is defined as all activity on the pension cases from January 14, 2013 — the date mediation was ordered by the Court — to the present and until that Court-ordered process has concluded.”

Asked if the administration intended to release the payment records, she said: “No.”

The state’s Access to Public Records Act says: “All records initially deemed to be public records … shall continue to be so deemed whether or not subsequent court action or investigations are held pertaining to the matters contained in the records.”

Chafee and Raimondo are basing their refusal to provide the spending records on a different part of the law, that exempts from disclosure “records, reports, opinions, information, and statements required to be kept confidential by federal law or regulation or state law, or rule of court.”

Their aides also cited sections of the law exempting “work product” from public disclosure along with “all records relating to a client/attorney relationship,” even though the client in this case is the state, and the state’s legal bills have traditionally been public.

Asked who had advised the state to withhold the records, Hunsinger said: “Please refer to the attached January 14, 2013 Order of the Providence County Superior Court.”

Even the state’s most adamant open-records advocates are unsure what to make of these developments.

“From what I can tell, they are all in uncharted waters because a law has never been mediated before,” said John Marion, executive director of the citizens’ advocacy group Common Cause. And, “from what I’m told there is incredible deference to the court in these sorts of matters.”